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An Issue of Life or Death

Reviewed by Nancy Koppelman

From Goods to a Good Life: Intellectual Property and Global Justice by Madhavi Sunder. New Haven, CT: Yale University Press, 2012.

Cultural production is central to thriving democracies. Literature, the arts, and film are products of culture, but so are medical breakthroughs and improvements in agricultural techniques. All these activities create intellectual property, but not all intellectual property is created equal and protected by the same laws. In From Goods to a Good Life: Intellectual Property and Global Justice, Madhavi Sunder argues that our laws must facilitate rather than thwart access to the information and cultural expression that enables thriving human development.

There is much more to the good life than goods. A good life requires the ability to both consume and produce the stuff of culture: music and conversation, decent food and a nurturing home, medical care and education, and the expressive forms of twenty-first-century globalism. A good life is the central aim of Aristotelian virtue ethics: the idea that human beings are innately predisposed to flourish in community. In our time, this means access to information that, in wealthy countries, is protected by intellectual property law. In contrast, poor countries have long been picked over for their cultural riches. To put it simply, this is not fair. Sunder, a professor of law at the University of California, Davis, seeks to balance the scales.

Sunder examines how information technology has transformed cultural exchange around the world. She argues that because the exchange of material and virtual goods connects human consciousness worldwide, intellectual property has been unwittingly transformed into the raw material of an emerging global culture. The legal implications of this fact are dramatic. Spontaneous cultural exchange undermines the idea that only the knowledge produced by experts educated in academic disciplines can be considered private property. Moreover, an ethical imperative accompanies any knowledge that can transform cultures for the better. Knowledge that can increase access to a good life should be disseminated as widely as possible for the sake of the collective good. Nowadays, intellectual property is both impossible to control and unequally distributed based on economic power and region. Laws that govern intellectual property must, therefore, catch up with a reality that law cannot, and no longer should, regulate the way it used to.

Throughout the book, Sunder tests economist Amartya Sen’s “capabilities approach” to human flourishing. This idea, conceived in the 1980s by Sen and then extended by the classicist Martha Nussbaum, holds that our innate capacity to live a good life is hollow without the material means to realize it. This approach to welfare economics and distributive justice fully embraces the fact that what Aristotle called “external goods and resources” are necessary to achieve the condition of human flourishing. Sunder brings this analysis of human capabilities to bear on contemporary debates about intellectual property law. She does so by examining and analyzing the practical realities of social and economic inequality that are maintained by bourgeois legal protections of property when property is not material.

From Goods to a Good Life brings the “capabilities approach” directly to the intellectual and creative aspirations of people in poor countries, who, like the wealthy, harness their energies of cultural innovation to shape and develop their own lives. The book’s political commitment is to celebrate and honor culture not as product but as process. This approach may seem counterintuitive given Sunder’s focus on property. But by connecting the capabilities approach to human flourishing with the practical fact that flourishing requires political and cultural freedom, Sunder seems to recast the definition of property itself. She claims that property of all kinds is an impermanent, contingent good that finds its value in the way it enables people to make meaning in their lives. Thus, property, whether concrete or virtual, is a participatory feature of culture, and its democratization acknowledges meaning making as inherently active and as an expression and measure of human freedom. For example, people routinely bequeath their real property to designated others and make meaning that way. Yet knowledge, too, is “passed on,” and without the fetters of materiality, knowledge reaches, leaks, and is exported in unpredictable and quixotic ways. For Sunder, this is nothing more than the process of culture itself, a process that has deep implications for the unequal, and often unjust, distribution of protections for knowledge that are common in first-world cultures but scarce in “traditional” ones.

These arguments form the heart of From Goods to a Good Life. Sunder prepares the reader for her central claims in the first four chapters. She explains and then critiques the “incentives approach” to intellectual property theory, which assumes that individuals will not be creative and innovative without incentives—in this case, the incentive is limited rights of ownership, such as patents, to retain control over the products of their thought. Sunder argues that the incentives approach cannot explain or resolve conflicts that stem from the globalizing technologies that give people access to knowledge that was once impossible to gain. She articulates a new theory of intellectual property that places cultural development and exchange directly in relation to dollar values and individual ownership. The participatory nature of culture undermines the individualist assumptions of traditional property law. A cultural approach adds value of a different kind because the products of culture, such as drug therapies, increase the collective good by enabling more people to achieve the capability of health. She poses the question “What kind of culture should law promote?” and notes the potentially positive effect of law on culture. In the case of intellectual property, law can honor indigenous people’s rights to their cultural products and also govern the distribution of intellectual property—such as medical knowledge—that can enable bedrock human capabilities (such as health) to be realized.

Sunder thinks global development efforts must stimulate not only economic but also cultural production. Citing and analyzing everything from Hollywood and Bollywood films, Harry Potter fan fiction, and Facebook to the development and distribution of AIDS medication in poor countries, she shows that people around the world are already producing culture across traditional boundaries of intellectual property. Her aim is to illustrate the inadequacy of contemporary property law to harness and make the most of democratizing impulses that are central to the ebb and flow of cultural exchange as well as to the potent and intentional development of human capabilities. Sunder convincingly argues in her bracing final chapter, “An Issue of Life or Death,” that patents, which may seem dry matters of intellectual property law, in fact govern life and death when the property in question enables people outside the developed world to obtain lifesaving drugs. Sunder calls into question the authority of patent law, which disproportionately benefits the rich. She cites precedents in earlier cases that demonstrate a socially enlightened conception of property, such as the World Intellectual Property Organization, which sought in 2006 to challenge a static view of “traditional” knowledge. She calls on contemporary policy makers to follow their example.

Policy change is particularly pressing in matters of public health; in Sunder’s words, “Patents that impede access [to lifesaving drugs] to the poor thwart both local democracy and human development. Nations must have the freedom to democratically construct patent policies to meet their humanitarian needs.” She concludes with this insight: “Wholly unlike physical property, which will naturally lose its value if overrun by large numbers, the unique property of knowledge is that its value is not diminished by greater use—far from it, the knowledge value only grows as it is used by more people, in additional, different ways.”

Sunder’s work imaginatively and daringly fleshes out the implications of one of the most influential new ethical theories and brings it to bear on the real lives of millions of people, for whom access to information is central to achieving their own human capabilities. This compelling book will provoke legal, cultural studies, and ethics scholars to make practical interventions in an effort to produce policy that governs intellectual property for the public good.

Nancy Koppelman teaches American studies, history, and ethics at Evergreen State College. Her e-mail address is koppelmn@evergreen.edu.